Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County No. J208306 A. Rex Victor, Judge. Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6, of the Cal. Const.
Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant G.O.
Nicole Williams, under appointment by the Court of Appeal, for Appellant D.T.
Ruth E. Stringer, County Counsel, and Dawn Stafford, Deputy County Counsel, for Plaintiff and Respondent.
McKinster, J.
G.O. (hereafter father) appeals an order terminating his parental rights to his daughter, S.O. (hereafter S.), and freeing the child for adoption. He contends that the juvenile court should have appointed a guardian ad litem for him, that he was denied due process because he was not served with form JV-505 (Statement Regarding Parentage) and that the court’s finding that S. is adoptable is not supported by clear and convincing evidence. We find no error with respect to any of the issues father raises.
A paternal aunt, D.T., who alleged that she was not appropriately assessed as a placement for S.O., also appeals. She has filed a letter joining in father’s opening brief, “to the extent she has standing to do so.” She makes no separate arguments, and father does not raise any issue pertaining to the court’s failure to assess D.T. or to place S. with D.T.
HISTORY
S. was born in February 2006 with severe birth defects, including intrauterine growth restriction (later determined to be Russell-Silver Syndrome, a form of dwarfism), club feet, micrognathia (a small jaw which makes feeding difficult) and hypertonia (stiffening of the muscles).
Father had a long criminal history, as well as a history of drug abuse and possible mental illness. He was incarcerated when S. was born, awaiting trial for first degree burglary. He had been in custody since September 6, 2005, and remained in custody throughout the dependency proceedings. He was not married to S.’s mother and was not listed on the birth certificate. There is no indication in the record that he was living with her at the time S. was conceived.
We take judicial notice of the records of this court in People v. G.O. (Feb. 4, 2009, E041678, nonpub. opn.) and of the Superior Court of San Bernardino in People v. G.O. (Super. Ct. San Bernardino County, 2006, No. FSB051948). (Evid. Code, §§ 452, subd. (d)(1), 459.) Father was convicted of two counts of first degree burglary (Pen. Code, § 459) on August 18, 2006. We reversed his conviction because the trial court failed to comply with the requirements of Penal Code sections 1368 and 1369, pertaining to determination of competence to stand trial. We remanded the cause to the trial court for further proceedings. (People v. G.O., supra, E041678 [at pp. 1-3].) As of February 8, 2010, father remains in custody. ( [as of Feb. 8, 2010].)
The parental rights of the mother, E.C., were also terminated. She is not a party to this appeal.
A referral to Children and Family Services (hereafter CFS) for “caretaker incapacity” was made when S. was born. CFS’s investigation revealed that mother tested positive for marijuana at the time of S.’s birth. She admitted having used marijuana during her pregnancy. Mother agreed to pursue an inpatient drug program. She also voluntarily enrolled in parenting classes. The hospital reported to CFS that mother had been visiting regularly and that she was “very appropriate” with the baby. After she provided CFS with several negative drug tests, the referral was closed.
A new referral was made on May 11, 2006, alleging general neglect and caretaker absence. S. was still in the neonatal intensive care unit at Loma Linda Medical Center because of poor feeding; a feeding tube had been inserted. Mother had not visited since May 4, 2006, and the hospital had been unable to contact her in order to train her for proper tube feeding following the baby’s release from the hospital. There had also been an incident during the week prior to the referral in which mother had been very agitated and did not want to follow hospital rules when handling the baby. According to the hospital’s contact notes, mother appeared to be under the influence of drugs.
Mother’s parental rights to her two older children (by other fathers) had been terminated because she failed to participate in her case service plan, and the children had been adopted by her sister.
S. was ordered detained in a foster home for medically fragile children. At the jurisdiction hearing, the court found that S. came within the provisions of Welfare and Institutions Code section 300, subdivisions (b), (g) and (j). (All further statutory citations refer to the Welfare and Institutions Code unless another code is specified.)
At a bifurcated disposition hearing, the court denied services to mother because she had previously failed to reunify with her older children and had failed to make a reasonable effort to remedy the problems that led to the removal of the older children. (§ 361.5, subd. (b)(10), (11).) The court found that there was no clear and convincing evidence that it would be in S.’s best interest to provide reunification services. (§ 361.5, subd. (c).) The court denied services to father, finding that he was an alleged father not entitled to services. The court was not persuaded that father is S.’s biological father, despite mother’s testimony to that effect. However, it stated that even if it were to find that he is the biological father, it would not benefit S. to offer him services because he had no relationship with S. and because of his extensive criminal history. The court also stated that even if it were to find that father was a presumed father, within the meaning of In re Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.), it would be detrimental to S. to offer him services, in light of his criminal history. The court set a hearing on termination of parental rights. (§ 366.26.)
On June 30, 2009, the court terminated parental rights. A prospective adoptive family had been found for S. and the adoption assessment resulted in a recommendation that S. be placed with that family for adoption. The court found that S. is adoptable and ordered S. placed for adoption.
Father filed a timely notice of appeal, as did his sister, D.T.
LEGAL ANALYSIS
ANY FAILURE TO DETERMINE FATHER’S BIOLOGICAL PATERNITY DID NOT RESULT IN DENIAL OF DUE PROCESS
As noted above, the juvenile court in this case was not persuaded that father was S.’s biological father. At the disposition hearing, the mother testified that he is the father, but no paternity testing was requested or ordered, and the court concluded that the mother’s unsupported assertion that father is S.’s father was not sufficient. The court noted that a woman’s belief that a certain man is the father of her child is often shown to be incorrect when paternity testing is conducted. Father contends that because he was not given notice, by means of service on him of form JV-505, of his right to assert paternity and of the requirements for establishing paternity, he was denied due process because he was unable “to change his paternity status and to have S.O. placed with paternal relatives.”
We note first that the issue is not cognizable in this appeal. Disposition orders are appealable. (§ 395, subd. (a)(1); Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 259.) However, a notice of appeal must be filed within 60 days of the date of the ruling (Cal. Rules of Court, rule 8.400(d)), and a parent generally may not attack the validity of a prior appealable order after the time for filing an appeal from that order has passed. (Dwayne P., at p. 259.) Here, the disposition order finding father an alleged rather than a biological father and denying him services was made on August 2, 2006. Father did not appeal that order, and the time to do so has passed. In any event, the contention also fails on its merits.
Father did file a notice of intention to seek writ review of the order setting the section 366.26 hearing. However, he withdrew his petition.
The Family Code and the Welfare and Institutions Code differentiate between “alleged,” “natural” or “biological” and “presumed” fathers. A man who may be the father of a child but whose biological paternity has not been established and who has not achieved presumed father status is an alleged father. (In re Paul H. (2003) 111 Cal.App.4th 753, 760.) Only a presumed father is statutorily entitled to reunification services. As an alleged father, father was not entitled to services. (Ibid.) However, the juvenile court may order services for a man determined to be the child’s biological father, if the court finds that services will benefit the child. (§ 361.5, subd. (a).) Consequently, father had a due process right to notice and an opportunity to change his status to that of biological father. (Paul H., at p. 760.) He contends that CFS’s failure to comply with section 316.2 and to provide him with form JV-505 and the court’s failure to inquire further into his paternity deprived him of that opportunity because he was not made aware that he could request paternity testing. He contends that if the court had ensured proper notice on the paternity issue, he could have requested paternity testing and “firmly established his right to participate in the proceedings as more than an alleged father.”
Father does not assert that the court erred in not finding him to be a presumed father.
We agree that notice was not given as required by section 316.2. Father was identified as the alleged father prior to the filing of the petition. Consequently, the failure to provide father with notice as required by section 316.2 arguably deprived father of notice that a request for paternity testing was necessary to protect his interests as S.’s biological father. However, the error was harmless under any standard, because after declining to find that father is S.’s biological father, the court stated that even if father were the child’s biological father, it would deny services because services would not benefit the child, given father’s criminal history and the absence of any relationship between father and S. The court further held that even if father qualified as a presumed father or a Kelsey S. father, it would deny services as detrimental to the child under section 361.5, subdivision (e)(1). Father does not contest the validity of the rulings that services to him if he were a biological father would not benefit S. and that services to him if he were a presumed father would be detrimental to S., which we deem to be a concession that the court’s findings were supported by substantial evidence. In light of those uncontested rulings, any error in notice to father of his right to request paternity testing was harmless beyond a reasonable doubt.
As pertinent, section 316.2 provides, “If, after the court inquiry, one or more men are identified as an alleged father, each alleged father shall be provided notice at his last and usual place of abode by certified mail return receipt requested alleging that he is or could be the father of the child. The notice shall state that the child is the subject of proceedings under Section 300 and that the proceedings could result in the termination of parental rights and adoption of the child. Judicial Council form Paternity-Waiver of Rights (JV-505) shall be included with the notice.” (§ 316.2, subd. (b).)
In Kelsey S., supra,1 Cal.4th 816,the California Supreme Court held that a biological father who cannot qualify as a presumed father under Family Code section 7611 because he has been precluded by the mother from receiving the child into his home may nevertheless qualify as a presumed father if he has done everything he reasonably could do under the circumstances to demonstrate a full commitment to his parental responsibilities. (Kelsey S., at pp. 825, 849.)
Section 361.5, subdivision (e)(1) mandates services to an incarcerated parent unless the court determines by clear and convincing evidence that providing services would be detrimental to the child.
Father’s appointed attorney stated that “it just never dawned... on [him]” to request DNA testing after the disposition hearing because all that could be gained by doing so was the relative preference for placement. He noted that CFS had treated father as though he were the biological father throughout the dependency, at least with respect to “checking out all of his relatives” as potential placements for S. Thus, he felt there was nothing to be gained by establishing biological paternity. Father does not challenge this decision as ineffective assistance of counsel. However, even if he were to pose such a challenge, it would fail for lack of prejudice, for the same reasons father’s due process claim for lack of notice fails. (See Strickland v. Washington (1984) 466 U.S. 668, 694 [prejudice for purposes of IAC is shown if there is a reasonable probability that the outcome would have been more favorable but for the attorney’s error or omission].) Furthermore, he has not raised any issue pertaining to the assessment of his relatives, including his half sister, D.T., as possible placements for S.
APPOINTMENT OF A GUARDIAN AD LITEM WAS NOT REQUIRED
Father contends that the juvenile court was required to appoint a guardian ad litem because the record shows that he was legally incompetent or that it shows that there was at least an indication of possible incompetence which warranted inquiry.
A person who is mentally incompetent must appear in legal proceedings through a guardian ad litem. (Code Civ. Proc., § 372.) A person is mentally incompetent, for purposes of appointment of a guardian ad litem, if he lacks the capacity to understand the nature and consequences of the proceedings or is unable to assist his attorney in representing his interest. (See In re Christina B. (1993) 19 Cal.App.4th 1441, 1450-1451.) The trial court may appoint a guardian ad litem on its own motion. (Code Civ. Proc., § 373, subd. (c).) Where the issue is the mental incompetence of an adult, as opposed to the fact that a party to the action is a minor, the decision is committed to the discretion of the trial court. (In re Emily R. (2000) 80 Cal.App.4th 1344, 1356.) Father has failed to show that the juvenile court abused its discretion by failing either to appoint a guardian ad litem or to make further inquiry into father’s mental competence.
The question of father’s mental competence apparently first came to the juvenile court’s attention at a permanent plan review hearing on October 7, 2008. During that hearing, the court referred to information contained in CFS’s status review report that father’s criminal conviction was apparently going to be reversed on appeal. In the discussion with the court, father’s attorney represented that father was found incompetent in the criminal proceedings. However, he also informed the court that based on his communications with father, he was firmly convinced that father was not incompetent for purposes of the dependency proceedings:
“[County Counsel]: Are you claiming he’s incompetent?
“[Father’s Counsel]: No. He seems to, for over the last year and a half his letters have been very lucid. I don’t know what changed [from the time of father’s criminal trial]. [¶]... [¶]... He definitely knows what he was in this.”
At a hearing on December 10, 2008, father’s attorney again mentioned the competency issue which was raised in the criminal trial. He told the court that father’s “thinking patterns will [sometimes] get him into an area or position to where I can’t understand him doing this. I mean it’s totally irrational and makes no sense. [¶]... And once he gets fixated on something that then like his criminal case, he got fixated that he wants to go pro per and waive jury. And because his counsel keep continuing his case and he turned down two years and ended up with 37.” He noted, however, that “we have to remember the 1368 [competency determination] was not necessarily well founded.” When the court asked if counsel was suggesting that a guardian ad litem be appointed, counsel replied, “No. When I’ve spoken to him regarding his case here... he had no problems understanding. He understood dependency, the realities of dependency, much better than he did his criminal case.”
Father’s actual sentence was 17 years eight months. (See People v. G.O., supra, E041678 [at p. 2, fn. 4].)
Although father’s attorney said in the first hearing that father was found incompetent in the criminal proceedings, the social worker’s report indicated the contrary—the social worker stated that if father won his appeal, he would get “a new trial for competency.” In any event, the information before the court was that, regardless of whatever problems father had in his criminal case, his attorney, who had communicated with him extensively, was convinced that he was not incompetent for purposes of the dependency proceedings. Under the circumstances, it was not an abuse of discretion not to appoint a guardian ad litem, nor was it an abuse of discretion not to conduct any further inquiry into father’s competence.
This, in fact, is correct. Father’s conviction was not reversed on the basis of a finding that father was incompetent; it was reversed because the trial court failed to follow statutory procedures to determine father’s competence to stand trial after his trial attorney expressed doubt about father’s competence. (People v. G.O., supra,E041678 [at pp. 1-3].) This court remanded the cause “for a new competency hearing, and when appropriate, a new trial.” (Id. [at p. 3].)
The only other factor father cites as evidence of incompetence is the fact that early in the proceedings he was not transported because of “behavior issues.” Father was not transported initially because he was assaultive toward prison staff. Belligerence and assaultiveness toward prison staff is not sufficient to trigger an inquiry into a parent’s mental competence to assist in representing his interests in a dependency proceeding.
SUBSTANTIAL EVIDENCE SUPPORTS THE COURT’S FINDING THAT S. IS ADOPTABLE
Section 366.26, subdivision (c)(1) provides that if the juvenile court finds by clear and convincing evidence that it is likely that the child will be adopted within a reasonable time, the court shall terminate parental rights and order the child placed for adoption. Father contends that because of her medical problems, S. is not generally adoptable and that the court was required to find that she was specifically adoptable, i.e., that there was an identified prospective adoptive parent and that S. was likely to be adopted within a reasonable time. He contends that there is insufficient evidence to support that finding.
Father concedes that the court’s finding of adoptability is reviewed for substantial evidence. (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1153-1154.) Under that standard, we must affirm the judgment if there is evidence of sufficient legal substance to permit the juvenile court to find clear and convincing evidence that the child was likely to be adopted within a reasonable time. (Ibid.) Here, the record shows that Mr. and Mrs. R. of Tennessee had found information pertaining to S. on an Internet adoption site and wanted to adopt her. The couple has several adopted children with significant disabilities. The husband is a registered nurse who works in pediatrics in a hospital and is obviously well-qualified to cope with S.’s medical problems. At the couple’s own expense, Mrs. R. had come to California to visit with S. and the two had quickly bonded. The R. children, both adopted and natural, were enthusiastically looking forward to including S. in their family. The adoption assessment was in all respects positive and the agency recommended placement with the R. family.
Father points out that because S. has never spent any time in the R.’s home, it is premature to conclude that she and the family will adapt positively and that the adoption will be concluded. There is always some possibility that an adoption will not come about, however, and the existence of that possibility does not detract from the conclusion that there is substantial evidence from which the juvenile court in this case could reasonably conclude that S. will be adopted by the R.’s within a reasonable time. Moreover, there is substantial evidence in this case which supports the conclusion that the R. family would persevere despite significant obstacles: The social worker reported that the agency in Tennessee which will supervise the placement is not authorized to supervise foster care placements which originate outside of Tennessee. It had therefore not been possible to place S. in the R.’s home before parental rights were terminated. Nevertheless, the R.’s had exhibited “an extraordinary commitment to developing a relationship with S[.]” and had gone to great lengths to do so, despite not having her placed in their home.
Father contends that a child such as S., who is not generally adoptable, is at high risk of becoming a “legal orphan” if parental rights are terminated and the adoption fails to go through. The concern about “legal orphaning” of children under section 366.26 is outmoded, however, in that the statute was amended in 2005 to add subdivision (i)(2), which provides that if a child has not been adopted after three years following the termination of parental rights, the child may petition the juvenile court to reinstate parental rights. (Stats. 2005, ch. 640, § 6.5.) Thus, under the current statute, there is no danger of any child becoming a legal orphan. (See In re I.I. (2008) 168 Cal.App.4th 857, 871 [Fourth Dist., Div. Two].)
DISPOSITION
The judgment is affirmed.
We concur: Ramirez, P.J., Hollenhorst, J.
Form JV-505, Statement Regarding Parentage, provides notice that the alleged father may request testing to determine whether he is the child’s parent or may provide evidence that he has already established paternity, or that he may request a trial to have the court determine whether he is the child’s parent. It also provides notice that if the person is determined to be the child’s parent, he may be provided with an attorney and with services “to help you get the child back.” It advises that an alleged parent will not get services “to help you get your child back” and that he will not automatically “get the child to live with you or your relatives.”